1 (Slip Opin i o n) OCTOBER T ERM, 20 09
Sy llabu s

N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r

. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O F THE UNI TED STATES

Sy llabu s


### UNION PA CIFIC RAI LROAD CO. v . BROTHERHOOD

OF L O C O MOTIVE E N GINE ER S AN D TRAINMEN GEN E RAL COMMITT EE OF AD JUSTM E NT, CENT RALREGI O N

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVE NT H CIRCUIT
No. 08–6 04. Ar g u ed Oc tober7, 2009—Dec i ded Dec e mb er8, 2009 The Railway Labor Act ( R LA or Act) was enacted to promote pe aceful and efficient resolution of labor di sputes. As amended, the Act man

dates arbitr a t ion of “minordisputes ” befo r epanels c o mposed of tw o representatives of l abor and two of industr y , with a neutral referee as tiebreaker. U n ion Pa cific R. Co. v. Pr i c e , 3 60 U. S. 601, 610– 61 3. To

su pplyarbitr a t or s, Con g r e ss establ i s hed the National Railroad Ad

justment Boar d (NRAB or B o ard), a boardof 34 priv ate persons rep
r e sen t in glaboran d in du str yinequ a l n u mber s. 45 U

. S. C. §153 Firs t(a). Before res o rt ingt oa rb i t r a t ion, em ployees a n d ca rriers must exhaust the grievance procedur es in their collective-bargaining agreement (hereinafter CBA), see § 153 Fir s t (i), a s t ag e kn ownas “on-property” proceedings. As a fin a l prea rb it ra tion s t ep, t h e pa rt ies must a ttem p tsett lement “ i n c o nfer ence” between repre s entatives of th e c a r r i erand th e g r iev a n t -employ ee. §152 Sec o n d , Six t h

. Th e RLA conta i ns ins t r u ctions conce r ning th e place and time of confere n ces, but does not “supersede the provis ions of any agreement (as to con
ferences)

. . . between the parties, ” §15 2 Six t h; in c o mmon pr ac tic e th e c o n f er en ce maybe as in for m al as a tel e ph on e c o n v ersation

. If th e parties fai lto achieve resolution, eitherm a yr e fer the mat t erto the NRAB. §1 53 First (i). Sub m iss i ons to th e Board must include “a full statement of the facts and all suppo r t in g databear in g u p onth e dis

putes.” Ibid. Parties m a yseek court rev i ew of an NRAB panel order

on one or mo re stated grounds: “failure .

. . to complywith the re

quirements of [the RLA], .

. . failureof the order to conform, or co n
-2 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Sy llabu s fine itself, to mat t er s within the sc op e of the division’s jurisdiction, or

. . . f r aud orc o rruption by a memberof the division making the o r
der

. ” §153 Fir s t (q). Cou r t s of Appeals h av ediv i ded on wh eth e r, in addition to the statutory grounds fo r j u dicia lreview s t a t ed in §1 53 First (q), court s mayrev i ew NRAB proceeding s for due process v i ola

tions.

Afterpeti tionerUnion Pac i fic Railroad Co. (hereinafter Carrier) charged five of its emp l oyees with dis c iplina ry viola t ions , their union (hereinafter Union) initiatedgrie vance proceedings pursuant to the CBA. The U n ion asserts t h at the part ie s conferencedall f iv edis

putes and the Carrier conce d es that they conferenced at le ast two. Dissatisfie d with the outcome of th e on-property proceedi n gs, the Un

ion sought arb i tration before the N RAB’s F i rst Div i sion. Both part ies filed su bm is si on s inth e fiv ec a ses, bu t n e i t h e rmen t ion e d c o n f er enc
ing a s adis p ut ed m a tt er. Ye t , in ea chca s e , b o t hpa rt ies neces s a rily knew whethe r the Union and the Ca rrier ha d confer red; a n d t h e Board’s governing rule, published in Circula r One, w h ich pres crib e s Boa r d procedures , ins t ruct s ca rriers andemployees to “set forth al l

r e lev a n t , ar g u men t ativ e f a c t s,” 2 9 CF R §3 01.5(d), (e). J u st pr iorto the hearing, o n e of th e arbi tr ationpan e l’ s in du str yr e pr esen tativ e s objected, sua sponte , t h a tt h e on-propert y record in clude dno proof of confere n cing. The Carrier thereafterembraced that objection. The referee allowed the Union to submitevidence of co nferencing. The Union did so, but it ma intai n ed th at the proof-of-con feren c in g issu e was untimely raised, indeed forfeited, as th e Carrier had not objected b e fore t h e date s e t for a r gum e nt

. The pa nel, in five ident i ca l deci

sion s, dism iss e d th e petitio n s forw a n tof ju r i sdic tion

. Th e r e c o r d could not be supplemented t omeet the no-proof-of-confe rencing objec

tion, the panel reasoned, for as an ap pella te tribunal, th e panel was not empowere d to consider den o v o evidence and argume nts. The Un

ion s o ught revi ew in the Federa l Di s t rict Court , whic h a ffirm ed t h e Board’s decisi on. On appeal, the Seventh Circuit observed that the “single questi on” at issue was whet her wr itten documenta t ion of the confere n ce i n t h e on-property re cord wa s aneces s a ry pr ereq uis i t eto NRAB arbi tr a t ion , an d dete r m in ed that there was no such pre r equi

site inth e sta t u t e orr u les. Bu t in ste a d of r e stin git s de c i siononth e Union’s primary, s t a t ute-bas ed a r gument—tha t the panel erred in ruling that it lacked jurisdi c tion over the cases—i treversed on the g r ound that t h e NRAB’s p r oceeding s were incompatib le with due process. Held: 1

. The S e venth Circuiter re d in resolving the Union’s appeal under

a c o n s titu tion al, r a th erth ana s t atu t or y , h e adlin e. Th is Cou r t gra n t e d cert io ra ri t oa ddres s whet her NRAB orders m a y b es e ta s ide3 Cite as: 55 8 U

. S. ____ (2009)
Sy llabu s forfailu r eto c o mplywithdu e pr oc ess n o twith s tan d in g§153 F i r s t (q)’s limi t ed grounds for re vi ew. But so long as a respondent does not “seek to modif ythe judg ment belo w,” true here, theres p ondent ma y “r elyupon anymatter app e ar ingint h e record in s u pportof t h e ju dg men t .” Blum v. Bacon , 45 7 U. S. 1 3 2 , 13 7, n

. 5. Th e Sev e n t h Circuit unde r s t ood tha tthe Union ha d pr essed “s tatutor yand c o nsti

tutional” ar g u ments, but ob serv ed that bo th ar g u ments homed in on a “ s ingl e ques tion”: is wr itte n doc u mentati o n of the conference in the on-propert y r e cord aneces s a ry prereq uis i t e t oNRAB a rb i t r at ion? Answer ingthi s “s ingl e question” in the negative, the Se venth Circuit effectively resolved the Union’s corecom p laint. Becau s e nothing in the Act elevates to juri sdictional status the obligation to conference minor dispute s or to prove confer enc i ng , a neg a tiv eanswerto the “single questi on” leaves no doubt about the Union’s entitle m ent, in

a ccord wit h§1 5 3 Firs t(q), t ova ca t i on of t h e Boa r d’s or ders

. Given this statutory ground for reli ef, ther e is no due process issue alive i n t h is ca s e , a n d no wa rra ntt oa n s w er a question that may be conse

q u ent i a lin a n ot her ca s e

. N e vert heles s , t h e gra n tof ce rt iora ri here

enab l es this Court to reduce conf us ion, clouding co ur t a s well a s Boar d dec i sions, ov ermatter s pr oper lyty p e d “jur isdic t io nal.” Pp. 10– 12.

2. Con g r e ss au th or izedthe Boar d to pr esc r ibe rules fo r presenting

an d pr oc essin gc l aims, §153 Fir s t (v), bu t Con g r e ss alon e c o n t r o ls th e Boar d’ s ju r i sd ic tion

. By r e fu sin gto adju dic a te th e in stan t c a ses on the false premise that it lack ed “jurisdic t io n” to hearthem, the NRA B panel fai l ed “to conform, or conf ine itself, to matters [Congress plac ed] within the sc ope of [NRAB] jur i sdic tion,” §153 Fir s t (q)

. Pp. 12–1 7. (a) Not all ma ndator y “pr e sc r i pt ions , howe ver emphatic, ‘are .

. . properly typed“jurisdictiona l.” ’ ” Arb a ughv. Y & H Cor p

. , 546 U. S

. 500, 5 10. Su bjec t-ma tterj u r i sdic tionpr oper lyc o mpr e h e n d ed r e fer s to a tr ibunal’ s “ ‘power to hea ra case,’ ” and “ ‘can ne ver b eforfeited or waived.’ ” Id. , at 514. Inc o n t r a st, a“c la i m -pr o c e ssin gr u le” does n o t reduce at r ib una l’s a d j u dicatory dom a inand is ordinarily“forfeited if t h e pa rt y a s s e rt ing t h e rule wa it s too longto r a ise the p o int.” Kon

trickv. Ryan , 540 U. S. 44 3, 456. Forex ample, th is Co u r t h a s h e ld nonj uris dictiona l a n d forfeitab l e the provision in Title V II of the Civil Rights Actof 196 4 requiring complain ant s to file a time lydisc r i mina

tion c h ar g ewith the E q ualEmploy mentOppor t unityCommi ssio n (EEOC) befor eproceeding to court, Zipes v. T r ans W o rld Ai rline s , Inc. , 455 U. S. 385, 3 93. In c o n t r a st, th e Cou r t h a s r e affir m ed th e ju

r i sdic tion al c h ar ac terof 28 U. S. C. §2107 (a)’ s time lim i t ationforfil

in ga n o tic eof appeal. Bo wles v. R u ss el l , 551 U. S. 2 05, 20 9–2 11. Her e , the r e quir ement thatpar t ie s to minordispute s , as ala s t4 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Sy llabu s

c h anc epr earb itr a tion, at te mpt se ttle m ent “in c o nfer ence,” is impo sed

onc a r r i er s an d g r iev a n t s alike, bu ts a t i sfac tionof th at o b lig at ion does not c o ndition the Boar d’ s adjudic a tor yauthor ity , whic h ex tends to “all di spute s between c a rr ier s an d their employees ‘growing out of grievances or out of the interpreta tion or appl ication of agreements
conce r nin gra t e s of pa y, rule s , or worki n g condit ions

. . . ,’ ” Slocum v. Delaware, L

. & W. R. Co. , 339 U. S. 239, 240 (qu o tin g§153 Fir s t (i)). When a CBA’s g r iev a nce procedure ha s not been followed, resort to the Board wo uld ordinarily be obje ctionable as premature, but the conference requ irement is in dependen t of t h e CBA proces s. Rootedin §152, th e RLA’ s “[g] en er al du ties” sec t i o n , an d n o t moor ed to th e NRAB’s “[e]s t abli s hment[,]

. . . powe rs[,] and duties” setout in §15 3 Firs t , confere n cing is oft e n inform a lin pra c t i ce, a n d is no m o re “ j u
r i sdic tional” t h an is the pr esuit r e sor tto t h e EEOC held nonjur isdic

tional and forf eitable in Zipes. And if the confere n ce requ irement is not “jur isdic t i o nal,” then fai l ur e init ially to submi tproof of confere n c
ing ca nnot b eof tha tgenre

. And al though the Carrier alleges th at NRAB decisio n s support characterizi ng conferencing as jurisdic

tional, if the NRAB l a cks a u thorityto define its panel s ’ jurisdiction, surely the panels themselv es lackthat authority. Furthermore , NRAB panel s hav ev a r i ously addr essed the matter

. Pp. 12–1 5. (b ) Neit her t h e RLA nor Circula r One cou l d pla u s i b l y be rea dt o require, as a p r erequisite to the NRAB’ s e x ercise of jurisdiction, sub

mission of proof of conferencing. In str u c t ion s onpar t y su bmi ssion s are claim-processing, not ju risdiction al, r u les. The Bo ard it self ha s recog n ized tha tconferen cingma y not b ea“q ues t ion in dis p ute,” a n d when that is so, proof thereof needn o t ac c o mpan ypar t y su bmi ssion s. It makes sense to exclude a tthe arbitr ati o nstag e n e wl ypr esen ted “data” supporting the employee’ s g r ievance, 29 CF R §30 1 (d)— evidence the carrier had no opportuni ty to consider p r earbitration. But conferenc i ng is not afact b e a r in g on the merits of a grievance. Moreove r , the RLA respects the partie s ’ rightt oorder fo r t h em s e lves the confere n ce procedures they w ill follow. See 45 U. S. C. §152 Six t h

. Pp. 16–17. 522 F. 3d 74 6, affir m ed.

G IN SB U R G , J., delivered the o p inion for a unanimous Court._________________

_________________ 1 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to
n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s

. 

# SUPREME CO URT O F THE UNI TED STATES

No. 08–6 04



### UNION PA CIFIC RAI LROAD COMPANY, P E TITION E R

v. BROTHERHOOD OF L O C O MOTIVE E N GINE ER S AND TRAI NMEN GE NERAL C O MMITTEE OF ADJU STM E NT, C E N T RAL RE GION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SEVE NTH CIRCUI T [Dec ember8, 200 9]


### J USTICE 

### G IN S B UR G

### delivered the opinion of th e Court. “It is most true that this Co urt will not take jurisdiction if it shouldnot,” Chief Justice Marshall famously wrote, “but it is e qually true, that itmu st ta ke juri sdiction if it should.

. . . We have no more right to decline the exercise of jurisdicti on which is given, tha nto usurp that which is not given.” Cohensv. Virginia , 6 Wheat. 264, 404 (1821);

see Marsha l l v. M a rsh all , 547 U. S. 293, 298–299 (2006). While Chief Justice Marshall’s statement bears “fi n e tuning,” th ere is surely a starting presumption that when jurisdiction is conferred, a court may not decline to exer

cise it. S ee R. Fall on, J. Man n ing, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 1061–1062 (6th ed. 2009). The general rule applic able to courts also holds for administrative agencies directed b y Congress t o adjudicat e particula r controversies. Congress vested in the National Railroad Adjustment Board (here i nafter NRAB or Boar d) jurisdicti on to adjud i

­2 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### cate grievances of railroad employees that remain unse t

tled after pursuit of in ternal procedures. 45 U. S. C. §153 First (h), (i). We consider in this case five nearly identical decisions of a panelo f the NRAB dismissi ng employee claims “for lack of juri sdiction.” NRA BFirs t Di v. Aw a r d No. 26089 etc. (Mar. 15, 2005), App. to Pet. for Cert. 65a–107a, 69a (herein a fter Panel Decision). In each cas e , the panel declared that a procedural rule raised by a panel member, unprompted by t h e parties, was “jurisd i ctional” in c haracter a n d therefore commanded threshold dismissal. The panel’s characteriz a tion, we hold, was misconceived. Congress authorized the Board to prescribe rules for the presentation and processing of claims, §153 First (v), b u t Congress alone controls the Board’s jurisdicti on. By presuming authority to declare procedural rules “jurisdictional,” the panel failed “to conform, or confine itself, to matters [Congress placed] within the scope of [NRAB] jurisdiction,” §153 Firs t (q). Beca use the panel was not “without a u thority to assume jurisdiction over the [e mployees’] claim[s],” Panel Decision 72a, its dismissals lacked tena ble grounding. Wetherefore affirm the judgment of the Seventh Circuit setting aside the panel’s orders. I A Concerned that labor disput es would lead to strikes bringing rai l roads to a halt, Congress enacted the Railwa y Labor Act (RLA or Act), 44 Sta t . 577, as amended, 4 5 U. S. C. §151 et seq. , in 1926 to promote peaceful and efficient res o lution of t h ose disput es. Se e Union Pacific R. Co. v. Pr ice , 360 U. S. 601, 609 (1959); §151a. The Act instructs la bor and in dustry“to exert every reasonable effort to make and maintain agreements concerning rate s of pay, rules, and working condi t ions, and to settle all3 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt 

### disputes, whether arising out of the application of suc h agreements or otherwise, in order to avoid a n y interruption to commerce or to the operat ion of any carrier .

. . .” §152 First; see Train m env. Jacksonville Terminal Co

. , 394 U. S. 369, 377–378 (1969) (describing obligation to pursue agre ement as the “heart of the [RLA]” )

. As part of its endeavor, Congre ss provided a frame w ork for the settlement and voluntary arbitra t ion of “minor disputes.” See Price , 360 U. S., at 609–610. (In the railroad industry, the term “ m inor disputes” means, primarily, “g rievan ces arising from the application of collective bargaining agreements to particul a r situations.” Id. , at 609.) 1 

### Many railro a ds, however, resisted voluntary a rbitration. See id., at 610. Congress theref ore amended the Act in 1934 (1934 Amendment) to mandate arbitration of minor disputes; under the a l tered scheme, arbitra tion occurs before pane ls composedof two representatives of labor and two of industry, wi th a neutral referee serving as ti ebreak e r. See id. , at 6 10–613. To supply th e representative arbitra tors, Congress establis hed the NRAB, a boar d of 34 priva t e persons representing labor and industry i n equal numb e rs. §153 First (a); see Trainm env. Chicago R. & I. R. Co. , 353 U. S. 3 0 , 36–37 (1957). 2 

### Neutral referees, the RLA provides, shal l be appoin ted by the representative arbitra tors or, fai ling their agreement, by the N a
tional Mediation Board. §153 Firs t ( l). The 1 934 Amendment authorized the N RAB to ado p t, at aone-time session in 1934, “such rules a s it deems necessary to control pro­

——————

1 In c o ntr a st to minordisputes, which assume “the e x istenc e of a collective agre ement,” majordisputes are those “over the formation of collective agre ements or efforts to se cure them.

. . . They look to the acquisit ion of rights for the future, no t to asser t ion of r i gh ts c l aimed to have vested in the past.” El g i n, J. & E. R. Co. v. Burley , 325 U. S. 71 1 , 723 (1 94 5).

2 The RLA div i des the NRA B into four Divis i ons , ea ch covering s p ecified c l asse s of r a ilr oad emplo y ees. §153 Fir s t (h).4 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### ceedings,” §153 First (v); the product of that rulemaking, codified at 29 CFR pt. 301 (2009), is known as Circular One. In k eeping with Congress’ aim to promote peaceful settlement of minor disputes, the RLA requires employe e s and carriers, before res o rting to arbitration, to exhaust the grievance procedures specifie d in t h e collectiv e -bargaining agreement (hereinafter CBA). See 45 U. S. C. §153 First (i). This st age of the dispute-resolution pro c ess is k n o w n as “on-property” p r oce e dings. As a final prearbitration step, the Act di rects parties to attempt s e ttlement “in conference” between designated representatives of the carrier and the grieva nt-employee. §152 Second, Sixth

. 3 

### The RLA contains ins tructions co ncerning th e place and time of conf erences, bu t specifies t hat the statute does no t

——————

3 Cen t r a l to th e in stan t c o n t r o v e r s y , §152 Se c o n d , Six t h r e ad, infu ll: “Second. Consideration of disputes by representatives. All di sputes between a carrier or ca rriers a n d its orthei r employees shall be considered, and, if possi ble, deci ded, with all expedition, in confere n ce be tween represe n tatives de signated and au thorized so to confer , res p ect ively, b yt h eca rrie ror carriers and bythe emp l oyees thereof interes t ed in the dispute.”

“Sixth. Conf erence of rep r esenta tives; time; pl ace; private agreements.

Inc a se of a dispu t e betwe e na c a rrier or carriers and its or thei r employees, ar ising out of grievances or out of the interpretation or application of agreements concerning ra t e s of pa y, rul e s , or wor k in g conditions, itshallbe the duty of the designated re presentative or repres ent a t ives of s u chca r r ier orcarrie rs and of such employees, within ten da y s afterthe r e c e ipt of notic eof a de sir e on the par tof either party to confer in respect to su c hdispu t e, to spec ifya t i me an d plac e atwh ic hsu c hc o n f eren c esh all be h e ld: Provided , (1) That th e plac e so spec ified sh all be si tu ated upon the line of the carrier i n volve d or as otherwise mutually agreed upon ; and (2) that the t i me so spec ifie d shall allow th e designated conferees r e ason able oppor t u n i tyto r e ac h such place of confere n ce, but shall not exceed twenty d a ys from the receiptof s u ch not i ce: And provided further , That no thing in this cha p t e r s h a ll b econs t r ued t os u pe rsede the provisions of any agreement (as to c o nfer enc e s) then in effe ct between the parti e s.”5 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt

### “supersede the provisions of any agreement (as to conferences) .

. . i neffect bet w een the parties,” §15 2 Sixth; it is undisputed that in common practice the conference ma y be as infor m al as a telephone conv ersation. If the parties fail to achieve resolution “in the usual manner up to and including the chief operating officer of the carrier designated to handle [minor] disputes,” either party ma y refer the matter to the NRAB. §153 First (i). Submissions to the Board must include “a full statement of the facts and all supporting data bearing upon the disputes.” Ibid. ; see 2 9 CFR §301.5(d), (e) (submission s “must clearly and briefly set forth all relevan t , argumentative facts , including all documentary evidence”). Arbitration is launched when the pa rty referrin gthe dispute files a notice of intent with the NRA B ; afte r Board a c
k n owledgment of the notice, the parties have 75 days to file s i multaneous sub m issions. NRAB, Uniform Rules of Procedure (rev. June 23, 2003). In creating the scheme of mandat ory arbitration superintended by the NRAB, the 1934 Amendment largely “foreclose[d] litigation” over minor disputes. Price , 36 0 U. S., at 61 6; see Railway Condu ctorsv. Pi tney , 326 U. S. 561, 566 (1 946) (“Not only has Congress .

. . designated an agency pec u liarly competent to h andle [minor disputes], but .

. . it also intended to leave a minimum responsibility to the courts.”). Congress did provide that an employee who obtained a monet a ry award against a carrier could sue to enforce it, and the court c o uld eitherenforce the award or set it aside. Price , 360 U. S., at 616; 45 U. S. C. §153 First (p ) (1934 ed. )

. In addition to that limited role, some Cour ts of Appeals, we noted in Price , reviewed awards “claimed to result froma denial of d u e process of law.” 360 U. S., at 61 6 (citing El lerdv. Sou t hernPa cifi c R. Co. , 241 F. 2d 541 ( CA7 1957); Barne t tv. Pennsylvan i aReading Se ashore Lin e s , 245 F. 2d 579, 582 (CA3 1957)). In 1966, Congress agai n amended the scheme, this time6 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### to state grounds onwhich both e m ployees a n d railroads could seekjudicial review of NRAB orders. The governing provision, still in force, allows parties aggrieved by an NRA Bpane l order to p e tition for court review. 45 U. S. C. §153 First (q) (2006 ed.). The provision in structs that“[o]n such review, the findings and order of the division shall be conclusive on the part ies, except t hat the order . . . may be set aside, in whole or in p a rt, or remanded . . . , for failure of the division to comply with the requirements of [t he RLA], for failure of the order to conform, or confine itself, to matters wi thin the scope of the division’s jurisdiction, or for fraud or corruption by a member of the d i vision ma k i ng the order.” Courts of Appeals have divide d on whether this provision precludes judicial review of NRAB pro c eedings for due process viol ations. Co mpare, e.g. , Shaffi v. PLC Bri t ish Airways , 2 2 F. 3d 59, 64 (CA2 1994) (review available), and Edelm a nv. W e st er n Air lines , Inc

. , 892 F. 2d 839, 847 (CA9 1989) (same), with Kinrossv. Utah R. Co

. , 362 F. 3d 658, 662 (CA10 2004) (review precluded). 4

——————

4 The disagreement ste m s f r om this Court’s per curia m opinion in Union Pacifi c R. Co. v. Sh eehan , 439 U. S. 89 (197 8)

. That case inv o lv ed an NRAB decision t u rningon a time limi t at ion contained in the g o v e rningCBA. Ba sed on that l i mi tat i on, the Board dism isse d an employ ee’s claim. The Tenth Circuit remanded the case to the NRAB on the ground that the Bo ard had fa i l e dto considerthe employe e ’s equitab l e to lli ngar g u mentand ther ebyviolateddue process. W e
s u m m a rily revers ed, ob s e rving t h a tt h e Boa r d ha d in fa ctcons idered the plea for e q uitab l e tollin g and e x plicitly rejected it. Id. , at 92. We added that if the Court of Appeal s “ i nte n ded to reverse the [N RAB ’s] rejection of [the employee’s] equitabl e toll i n gar gument,” then the c o urt had exceeded the bounds §153 First (q) pl aced on its review authority. Id. , at 93. I ndeterminingwhether the CBA’s t i me limit at ion was tolled, we said, the Board “c ertainly w a s ac tin g w i th inits ju r i sdic tio n and in c o nformitywith . . . the Ac t.” Ibid.7 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt 

### B The instant matter aro s e when petitioner Union Pacific Railroad Co. (hereinaf ter Carrier) char ged fi ve of its e m
ployees with disciplinary violations. Thei r union, the Brotherhood of Loco motive Engineers and Trainme n (hereinafter Union), in itiated grievance proceedings pursuant to the CBA. The Unio n asserts that, following exhaustion of grievan c e proceedings, the parties conferenced all the disputes; counsel for the Carrier conceded at argument that at leas t two of the disputes were conferenced, Tr. of Oral Ar g. 7. Dissatisfied with the outcome of the on-prop e rty proceedings, the Union sought arbitra ti on before the First Division of the N RAB. The Union and the Carrier, fro m early 200 2 through 2003, filed simultaneous submission s in the five cases. In each submission, t h e Union included the not i ce of discipline (or discharge), th e hearing tra nscript, an d all exhibits and evidence relatin g to the underlying adverse action s used inthe grievance proceeding. Neither party me ntioned conferencing as a disputed matter. Yet, in ea ch case, both parties necessarily knew whether the Union and the Carr ier had conferred, andthe Board’s govern ingrule instructs car r ier s and employees to “set forth all r e levant, argumentative facts,” 29 CFR §301.5(d), (e). On March 18, 2004, just prior to the hearing on the employees’ claims, oneof the industry repre s entatives on the arbitra tion panel raised an objection. Petition to Review an d Vaca te Awar ds an d Orders of First Di v. NRAB in No. 05–civ–2401 (ND Ill.), ¶20 (her einafter Pet. to Review). Onhis own initiati ve, unprom p ted byth e Carrier, and in executive session, the industry representative asserted that the on-prope rty record included no proof of conferen cing. See ibid. The Carrier thereafter embraced the panel mem b er’s objection. The ne utral referee informed the Union of the issue a n d adjourned the hearing, allowin gthe Union “to submit evidence that confer­8 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### encing had in fact occurred.” See id. , ¶¶21–23. The Uniondid so, offering phone logs, handwritten notes, and correspondence between the parties as evidence of conferencing in each of the five cases. E.g. , Panel Decision 67a–68a

. From its fir s t notice of the objection, however, the Union maintained that the proof-of-conferencing is sue was u n
timely raised, indeed forfeited, as the Carrier itself had not objected prior to the date se t forargument of the cases

. E.g. , id. , at 67a; Pet. to Review ¶¶2 2, 29, 30, 54

. On March 1 5 , 2005, nea r ly one year after the question of conferencing first arose, the p anel, in five id entical deci

sions, dismissed the petitions for want of “ authority t o assume jurisdiction over the clai m[s].” Pa nel Decision 72a. Citing Circular One, see supra , at 3 –4, and “the weight of a rbitral prec edent,” the panel stat ed that “th e evidentiaryrecord” must be deemed “closed once a Notice of Intent has been filed with the NRAB .

. . .” Panel De cision 71a. 5

### In explaining why the r e cord could not be supplemented to meet theno-proof-of

- conferencing objection, the panel emphasized that it was “an appellate tribunal, as opposed to one whic h is empow e red to consider and rule

on de novo evidence and arguments.” Id. , at 69a. The two la bor representatives dis s ented. Th e Carrier’s submission s, they reasoned, tookno exception based o n failure to conference o rto prove conferencing; therefore, they concluded, under a “well settled principle governing the Board’s deliberations,” the Carrier had forfeited the issue. Id. , at 105a–106a. The dissenters urged that th e Union had furnished evidence showing “the cases had all been confe r enced, even though the relevant Collective BargainingAgreement [did] not require [conferencing].” Id. , at 105 a. Dismis s al of the claims, the dissenter s

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5 The pa nel ob s e rved, howeve r, t h a tt h e rec o rds a n d not e s offered b y the Union, “on theirfac e , ma ybe r e g a rded as supportive of its posi tion th at th e c o n f er en c e [s] oc c u r r ed.” Pan e l Dec i sion69a.9 Cite as: 55 8 U

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Opinion of theCourt 

### charged, de monstrated “the kind of gamesmanship that breeds contempt for the minor di spute process.” Id. , a t 107a. The Unionfiled ape tition for review in t h e United States District Court for the No rthern Distri ct of Illinois, asking the court to set aside the Board’s orders on the ground tha tthe panel had “unlawfully held [it lacked] authority to assume jurisdiction over [the] cases [absen t] evidence of a ‘conference’ between the parties in the .

. . ‘on-propert y ’ record.” Pet. to Review ¶1. Nothing in the Act or the NRAB’s procedural rules, the Union maintained, mandated dismissal for f a ilure to allege and prove conferencing in the Un ion’s original submission. Id. , ¶¶3, 4. By impo sing, without warrant, “a technica l pleading or evidentiaryrequirement” and elev ating it to jurisdictional status, the Union ch arged, the panel had“egregiously violate[d] the Act,” id. , ¶3, or “fail[ed] to conform its jurisdiction to that required by .

. . law,” id. , ¶4. Alternatively, the Union a sserted that the panel violated procedural due process by entertaining the Carrier’s untimely objection, even though “the Carr ier had failed to raise any objectio n as to lack of conferencing” in its submissions. Id. , ¶5. The Distric tCourtaff i rmed the Board’s or d e rs. Addressing the Union’s argume nt that the no-proof-ofconferencing issue was untimely raised, the court accep t ed the panel’s description of the issue as “ju r isdictional,” and noted the familiar proposition t hat jurisdictional challenges may be raised atany stage of the proceedings. 43 2 F. Supp. 2d 768, 777, a n d n. 7 (2006). On appeal, the Seventh Circuitrecognized that th e Union had presented its case “through both a statutory and constitutional framework.” 5 22 F. 3d 746, 750 (200 8). The court observed, however, that “the essence of the conflict boils down to a single question: is written documentation of the conference in t h e on-property recorda necessary prerequisite to arbi tration before the NRAB?”10 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### Ibid. It then determined that there was no such pre r equisite: “[N]o statute, re gulation, or C BA,” th e court co ncluded, “re quired the evidence [of conferencing] to be presented in the on-pr o perty re cor d .” Id. , at 7 57–758. Bu t instead of resting its decision on the Union’s primary, statute-based argume nt—that th e panel erred in ruling that it lac k ed jurisdi ction over the cases—the Court ofAppeals reversed on the ground that the NRAB’s proceedings were incompatible with due process. See id. , at 750. II We granted the Carrier’s petition for certiorari, 555 U. S. ___ (2 009), which asked us to determin e whether a reviewing c o urt may set aside N RAB orders for failure to comply with due process notwithstanding the limited grounds for review specified in §153 First (q). 6

### A s e a r l i e r recounted, Courts of Appeals ha ve divided on this issue. See supra, at 6, and n. 4. Appeari n g as respondent in thisCourt, however, the Union urged affirmance of the Seventh Circui t ’s judgment on an alternative ground. Reasserting the lead argum e nt it had advanced i nits petition for court re view, see supra , at 9, the Union maintained that the Board didnot“conform, or confine itself, to matters withinthe scope of [its] jurisdiction,” §153 First (q). Brief for Respondent 52–53. In response, the Carrier stated that the Union ’ s alte rnative ground “presents a pure question of law that th[e] Court can and should resolve without need for remand.” Reply Brief 24, n. 9. We agree. So long as a respondent does not “seek to modify th e judgment b e low,” true here, “[i]t is well accep t ed” thatthe

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6 Quoted su pr a , at 6, those grounds are “f ailure of the division to

c o mplywith [RLA] r e quir ements,” “fai lure of theorde r to co nform, or
c o nfine itself, to ma tter s wi t h in the sc ope of the division’s jurisdiction,” and “fr a ud orc o r r uption bya member of the div i sio nmakingthe order.”11 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt

### respondent may, “without filing a cross-appeal or crosspetition, .

. . rely upon any matter appearing i nthe recor d in support of the judgment.” Blum v. Bacon , 457 U. S. 132, 137, n. 5 (1982). The Seve nth Circuit, as just o b

served, see supra , at 9 –10, understood that th e Union ha d pressed “st a tutory andconstitu tional” argum e nts, but also comprehended that bo th argumen t s homed in on “a single question: is written documentation of the conference in the on-propertyrecord a n e cessary pr erequisite to arbitration before the NRAB?” 5 22 F. 3d, at 750. An swering thi s “single question” in the negative, the Court of Ap peals effectively resolved the Union’s c o re complaint. Bu t, fo r reasons far from apparent, the court declare dthat “onc e we answer the key question .

. . , adjudicatio nof the du e process claim is unavoidable.” Ibi d

. The Seventh Circuit, we agree, asked the right question, but inappropriately placed its answer under a constitu

tional, rather than a statutory, he adline. As the Court of Appeals determined, and as we discuss infra , at 12–17, nothing in the Ac t elevates to j u risdictional status th e obligation t o conference minor dis p utes or to prove conferencing. That being so, the “u navoidable” conclusion , following from the Seventh Circui t ’s “ans wer [to] the ke y question,” 522 F. 3d, at 750, is that the panel, in§1 53 First (q)’s words, failed “to conform, or confine itself, t o matters wit h in the scope of [its] jurisdiction.” The Carrier , although it sought a di fferent outcome, was q u ite right to “urg[e] [the Court of Appeals] to consider the statutor y claim befor e the constitutional one.” 522 F. 3d, at 750. In short, anegative answer to the “single question” identified b ythe Court of Appeals leaves no doubt about the Union’s entitlemen t, in accord with §153 First (q), to vacation of the Board’s orders. Given t h is statutory ground for relief, there is no due process issue alive in this case, and no warrant to answer a question that may b e consequential in another case: Abse nt grounds specified in12 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### §153 First (q) for vacating a Board order, may a reviewin g court set aside an NRAB adjudication for incompatibility with due process? An answer to that question must await a case in which the issue is genuinely in controversy. 7

### I n this case, however, our gran t of certiorari enables us to address a matter of some importance: We can redu c e confusion, c l ouding cou rt as well a s Board decisions, over matters pro p erly ty ped “jurisdictio nal.” III A Recognizingthat the word “ju r isdiction” has been used by courts, including t h is Court, to convey“many, to o many, meanings,” Steel Co. v. Ci ti zens for B e tter Environ

ment , 523 U. S. 83, 90 (1998) (internal quotation marks omitted), we have cautioned, in recent decisions, against profligate use of the term. Not al l mandatory “p rescriptions, however emphatic, are .

. . properly typed jurisdictional,” we explained in Arbaughv. Y & H Co rp. , 546 U. S. 500, 510 (2006) (internal quotation marks o m itted). Subject-matterjurisdiction prop erly comprehended, we emphasized, refers to a t r ibunal’s “power to hear a case,” a matter that“can never be forfeited or waived.” Id. , at 514 (quoting Unit e dSt at esv. Cotto n , 535 U. S. 625, 63 0 (2002)). In contrast, a“claim-pro c essing rule, .

. . even if unalterable on a party’s application,” does not reduce th e adjudicatory domain of a tribuna l and is ordinarily “forfeited if the party asser t ing the rul e waits too long to raise the point.” Kontrickv. Ryan , 540 U. S. 443, 456 (2004).

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7 A ca s eof tha torder would b eunc ommon. As the Car r i erac knowledges, “many of the cases reviewi n g os tensibly extra-statutory due process objecti o ns could have beenac c o mmodatedwithi nthe sta t utor y framework.” Brief for Pe titi oner 36. See also id. , a t37 (“ The s t at ut ory review pro v is ions a r e pla i nly gene rous en ough t operm itlit i ga nt s to raise all of the simple, com m on, easily a d judicated, an d likely to be meritorious claims that s a il under theflag of due pro c es s of law . .

. .”).13 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt 

### For exampl e, we have held nonjurisdictional and forfeitable the provision in Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq. , requiring com p lainants to file a timely charge of discrimination with th e Equal Employment Opportunity Commission (EEOC) before proceeding to c o urt. Zip e s v. Tr ans World Ai rli n es, Inc. , 45 5 U. S. 385, 393 (1982). We have a l so held non j urisdictionaland forfeitable the Title VII provision exempting employers who en gage fewer than 15 em ployees. A r baugh , 5 46 U. S., at 50 3, 515–516. And we h a ve determined that a Chapter 7 trustee’s (or creditor’s) limited time to object t o the debtor’s discharge, see Fed. Rule Bkrtcy. Proc. 4004, is a claim-processing, nota jurisdictional, matter. Kontrick , 540 U. S., at 446–447, 460. In contrast, relying on a lon g line of this Court’s deci sions left u n disturbed by Congres s , we have reaffirmed the jurisdictional characterof the time limitation for filing a notice of appeal stated in 28 U. S. C. §2107(a). Bowle sv. Russell , 551 U. S. 2 05, 209–211 (2007). Se e also Joh nR. Sand & Gravel Co. v. Uni t ed Sta t es , 552 U. S. 130, 132 (2008) (court must consider sua sponte timeliness of lawsuit filed agains t the United States in th e Court of Federal Claims). With these decisions in mind, we turn ba ck to the requirement that parties to minor disputes, as a last chance prearbitrati on, attempt settlement “in con f erence,” 45 U. S. C. §152 Second, Sixth. See supra , at 4–5, and n. 3. This obligation is imposed on carriers and grievants alike but, we hold, its satisf action does not condition the adjudicatory auth o rity of the Board. The Board’s jurisdiction extends to “all disputes between carriers and their emp l oyees ‘growing out of grievances or out of the interpretation or application of agreements concerning rates of pay , rules, or working cond itions .

. . .’ ” Slocum v. Dela wa re, L. & W. R. Co. , 339 U. S. 239, 240 (1950) (quoting §153 First (i)). True, the RLA instru cts that, before any reference to arbitration, the dispute “sh a ll14 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### be handledin the usu a l manner up to and including th e [designated] chief oper ating officer.” §153 First (i). And when the CBA’s grie vance procedure has not been f o llowed, resort to the B o ard wo uld ordinarily be objectionable as premature. The additional requirement of a conference, we note, is independen t of the CBA process. Rather, the conference requirement is stated in the “[g]eneral duties” section of the RLA, §152, a section that is not moored to the “[e]stablishment[,] .

. . powers[,] and duties” of the NRA B set out nextin §153 First. Rooted in §152 and often informal in practice, see supra, at 4– 5, conferencing is surely no more “jurisdictional” than is the presuit resort to th e EEOC heldforfeitable in Zipes , 45 5 U. S., at 393. 8

### An di f the requirement to conference is not “jurisdict ional,” then failure initially to sub m it proof of conferencing cannot be of that genre. See Part III–B, infra

. In defense of the Board’s characterization ofconferencing and proof thereof as jurisdictional, the Carrier points to the NRAB’s Cir c ular One pro c edural regulations, see supra , at 3 –4, which provide: “No petition sha ll be consid

ered by any division of the Board unless the subject matter has been handled in accordan ce with the provisions of the [RLA].” 29 CFR §301.2(b). But that provision, as other presc r iptions in Circular On e, is a claims-processing rule. Cong ress gave t h e Board n o authority to adopt rul e s of jurisdictional dimen s ion. See 4 5 U. S. C. § 153 First (v) (authorizing the NRA Bto “adoptsuch rules as it deems necessary to control proceedin gs before the respective

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8 Th e RLA stat es, in§152 Fir s t, a g e n e r a l du ty“to settle a ll dispu t e s ,”

an d, in§152 Sec o n d , a mor e spec ificdu tyt o“c on fer e n c e.” Th ese pr ov ision s applyto all dispu t e s i nth e railroad industry, major as well as minor. They also apply to disputes in the airline in dustry, over whi c h th e NRA Bh a s n oju r i sd ic ti on

. §181. N e ith e rpr ov ision“speak[ s ] i n j u ris d ict i ona l t e rm s or refer [ s ] in any way to the juris d iction of the” NRAB. Zipes , 455 U. S., at 394.15 Cite as: 55 8 U

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Opinion of theCourt 

### divisions and not in conflict with the provisions of this section”). And when the fact of conferencing is genuinel y contested, we see no reason why the panel could not adjourn the proceeding pending cure of any lap s e. Circular One does not exclude such a sensib le soluti on

. The Carriercites NRA Bdecisions that allegedly suppor t characteriz a tion of conferencing as jurisdictional. If the NRA Blacks authorityto define the jurisd iction of its panels, however, sure ly the pane ls themselves lack tha t authority. Furtherm o re, NRAB panels have variousl y addressed t h e matter. For examp l e, in NRA BThird Di v. Award No. 15880 (Oct. 26, 1967 ), the panel, although characterizi ng the conf erenci ng re quirement as “jurisdictional,” said that “[i]f one of the parties refuses or fails to avail itself of a conference where there is an opportunity to do so, it ca nnot then assert the d e fense of a lack of ju risdiction.” Id., at 2. See also NRAB Fourth Div. Awa r d No. 5074 (June 21, 2001) (same); NRAB Third Di v. Award No. 28147 (Oct. 16, 1989) (same). Cf. Arbaugh , 546 U. S., at 511 (“unrefined” uses of the word “jurisdictio n” are entitled to “no precedential effect” (internal quotation marks omitted)). And in NRAB First Div. Award No. 23867, p. 5 (Apr. 7, 19 88), the panel obs e rved that the ordinary re medy for lack of conferen cing is to “dismiss th[e] claim without prejudice to allow Claimant to cure the jurisdictional defect.” That panel reached the m e rits nevert heless. Ibi d

. Cf. S t eelCo

. , 523 U. S., at 94 (“Jurisdiction is power to declare the law, and when it ceases to exist, the onl y function remaining to the [tribunal] is that of announcin g the fact and dismiss ing the cause” (quoting Ex parte McCardle , 7 Wall. 506, 514 (1869)).). We note, in addition, the ack n owledgment of the Carrier’s counsel that, if conferencing has not occurred, NRAB panels have stayed arbitration to allow the parties to confer. Tr. of Oral Arg

.16 UNION PACI FIC R. CO. v. LOCOMOTIV E ENGINEE R S AND TRAINMEN GEN. COMM. OF ADJUST MENT Opinion of theCourt 

### 10, 22. 9 

### B The RLA provides that, when on-property proceedings do not yield settlement, both pa rt ies or either par t yma y refer the case to the B o ard “with a full statement of the facts and a ll supporting data bearing upon th e disputes.” §153 First (i). Circular One correspondingly instru cts employees seek ing Board adjudication “[to] set forth all relevant, argumentative facts” and “affirmatively show th e same to have been pr esented to the carrier and made a part of th e particula r question in disput e.” 29 C F R §301.5(d); see §301.5(e) (similar instruction addressed to carriers). Conferencing, the Car r ier urged, is a “relevant, argumentative fac[t],” so pr oof thereof must accompany party subm issions. As earlier explained, see supra , at 14, instructions on party subm issions—es s e ntially pleading instructions—are claim-processing, not j u risdictional, rules. Moreover, the Board itself has recognized that conferencing may not be a “question in dispute.” It has counseled parties submitting joint exhibits “to omit documents that are unimportant and/or irrelevant to th e disposition of the [ca s e]; for exam

ple .

. . lett ers requesting a conference (assuming that i s notan issu e in the dis p ute).” NRAB Instructions Sheet , Joint Exh. Program, p. 5 (July 1, 2003), online at http://www.nmb.gov/arb itration/nrab-instruc.p d f (as visited Dec. 3, 2009, and available in Clerk of Court’s case

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9 While holding that the pan e l did no t lac kjurisdiction over the employees’ claims, we recognize the Boar d’ s au th or ityt oadopt c l a i m
pr oc essin gru les bac ked by effective sanctions. See su pra , at 3; c f. Fed. Rule Civ. Pro c . 37(b)(2) (sp e cifying san c tion s, in c l u d ing dismi ssa l, for failure to com p ly with disco v ery orde rs); Rule 41(b) (au t horizing invo luntary dismis sal for failure to prosec ute orto c o mplywith rules of procedure or court orders). We al so recog n ize that NRAB panels, i n
man a gi n gin div i du al arbi tr ation s , mayp r esc r ibe an d en for c er e ason
able procedural requirements.17 Cite as: 55 8 U

. S. ____ (2009)
Opinion of theCourt 

### file). It bears repetition he re that neither the Union nor the Carrier , in its submissions to the Boar d, identified conferencing as a “question in disp ute.” See supra , at 7. It mak e s sense to exclude at the arbitration stage newly presented “data .

. . in support of [the] employ ee[’s] [grievance],” 29 CFR §301. 5(d)—evidence the ca rrier had no opportunityto consider prearb itr a tion. A contrary rul e would sandbag the carrier. But conferencing is not a fa ct bearing on the merits of a grievance

. Indeed, there may be no disagreement at all about the occurrence of conferencing, as the Union believed to be t h e case here. Moreover, the RLA r e spects the right of t h e parties to order for themselves the conference pr ocedures they will follow. See 45 U. S. C. §152 Sixth (“[N]oth ing in this c hapter shall be construed to supersede the pro visions of a n y agreement (as to conferences) .

. . in effect between the p a rties.”). I n sum, neither the RLA nor Circula r One couldplausibly b e read to req u ire, as a p r erequisite to the N RA B ’s exer cise of jurisdiction, submissionof proof of conferencing. * * * By refusing to adjudica te cases on the false premise tha t it lackedp o wer to he ar them, th e NRA Bpa nel failed “to conform, or confine it self,” to the jurisdiction Congress gave it. W e therefore affirm the judgment of the Court of Appeals for the Seventh Circuit. It is so orde red.